It is not possible to combine the sanction for the non-regularization of the transferee / client with the sanction envisaged for the unfaithful or omitted invoicing: the violations are not in a progression relationship. This was established by the Court of Cassation with Ordinance no. 24302 of 4 August 2022.
The sanction for failure to regularize the transferee / customer it cannot be combined with the sanction foreseen for the unfaithful or omitted invoicing the violations not being in relationship of progression.
This is because the assumption of the progression of the violations for the application of the institute of the legal cumulation it is constituted by the finalistic uniqueness of the conduct, due to the objective link between the various ones violations committed suitable, in a progressive and connected way, to affect the determination of the taxable amount or on the tax.
These are the conclusions contained in theOrdinance n. 24302 of 4 August 2022 issued by Court of Cassation.
- Court of Cassation – Ordinance number 24302 of 4 August 2022
- The text of the Order of the Court of Cassation number 24302 of 4 August 2022.
The case – L’Revenue Agency issued a assessment notice containing the findings of a tax audit conduct towards the Alfa company with which, in relation to the non-invoicing of taxable transactions towards the Beta company, redetermines the higher business income and imposed the penalties for theunfaithful statement and the failure to issue and record the transactions carried out.
The notice, challenged, became final following the passing of the sentence unfavorable to the taxpayer.
In a separate act of contestation, the Finance Office contested theomitted self-billing for taxable operations carried out by Beta with the imposition of sanctions pursuant to 6, paragraph 8, Legislative Decree n. 471 of 1997.
The Beta company challenged the deed, arguing the failure to apply theart. 12, paragraph 2, Legislative Decree. n. 472 of 1997 with respect to the sanctions already imposed with the previous notice.
The appeal was accepted by the CTP and the confirmed sentence also on appeal.
Against the decision of the CTR theRevenue Agency filed an appeal in cassation with which he complained about the violation / false application of theart. 12, paragraph 2, Legislative Decree. n. 472 of 1997.
According to the appellant, the CT Reg. Had erroneously considered the legal cumulation resulting from the progression between the violation for theomitted self-billing in relation to purchases made by the company and the violation, subject of the previous notice, due to the failure to invoice taxable operations carried out by the same company.
Considering the reason for the complaint to be well founded, the Supreme Court accepted the appeal of the Revenue Agency.
The decision – On the subject of legal cumulation, art. 12, co. 2 Legislative Decree 472/1997 provides that it is subject to the more favorable sanction envisaged for formal and substantial concurrence of the violations even those who, albeit at different times, commit more violations than, “In their progression, they affect or tend to prejudice the determination of the taxable amount or the periodic payment of the tax”.
As can be seen from the letter of the provision, the salient feature that justifies the abolition of the sanctioning measure is constituted by “progression” violations. The connection between the various violations, however, can only be objective, so the application assumption of the rule must be identified in the fact that the violations, as a whole, are suitable, because in relationship of continuity and mutual relationshipto affect the determination of the taxable amount or the tax.
The progression occurs, for example, in the case of omitted invoicing of taxable transactions which is followed by unfaithful statementsince this is a conduct connected to the compromise of the taxable amount, while it must be excluded in the case of individual and different conducts concerning activities that are unrelated to each other (eg omitted payments of declared taxes).
In the present case, art. 6, paragraph 8, Legislative Decree. n. 471 of 1997 states that “The transferee or customer who, inexercise of businesses, arts or professionshas purchased goods or services without an invoice having been issued in accordance with the law or with the issuance of an irregular invoice by the other contracting party, is punished, without prejudice to the responsibility of the transferor or commission agent, with administrative sanction equal to one hundred percent of the tax, with a minimum of € 250, provided that the transaction is not regularized “.
In case of omitted invoicing by the seller / commission agentif the regularization occurs by the transferee / client, no sanction can be imposed and the violation is of a formal nature, so that, on the one hand, it is not suitable for determining the taxable amount of the transferor / commission agent and, by the other, it is not a detectable logical and objective connection with respect to autonomous conductcarried out by the same taxpayer, of failure to invoice taxable transactions.
In the light of this reasoning, the Court therefore stated that “The application premise of the sanction progression referred to in art. 12, paragraph 2, Legislative Decree. n. 472 of 1997 is constituted by the finalistic uniqueness of the conduct due to the intrinsic and objective link between the various violations committed, suitable, in a progressive, continuous and connected way, to affect the determination of the taxable amount or tax; it follows that the omitted regularization of purchases pursuant to art. 6, paragraph 8, Legislative Decree. n. 471 of 1997 is not in a progression ratio with respect to the omitted invoicing of taxable transactions “ and, therefore, the legal cumulation.